I have two observations on the current campaign against the result of the constitutional referendum led by loud voices among the political class; one on its form and the other on the subject. In terms of form, as I understand it, when 77% of the voters support the proposed amendments it means that we have a strongly supported document which can provide a road map for the military to hand over power to civilians. This will lay a foundation for the kind of civil society which everyone has been talking about recently.
By any democratic standards, this result should be binding on the minority of voters who objected to the amendments. It is hard to understand why they do not accept the result and have been attempting to circumvent and neutralise it; once by questioning the awareness of the masses who voted in favour, once by claiming that the referendum fell short by issuing the Constitutional Declaration, and a third time by calling for a new referendum. Some of the figures behind this campaign have even challenged in the most intemperate language the integrity of the Committee which prepared the amendments.
When the people express their will through the ballot box it is not only a successful democratic exercise but also the establishment of legitimacy; no authority can overturn or reject it. This applies to the military council as much as anyone, even with its extraordinary powers in the transition stage to disable the 1971 constitution if necessary and announce the constitutional declaration and various legislation. It cannot escape the fact that the masses have spoken.
This is confirmed by Tariq Albeshri Alfaqih, who headed the Commission on Amendments to the Constitution. He has stated that the provisions which the people were asked to vote on restrict the political, legislative and constitutional will of the junta. Any objective judge will, when presented with any decision or legislation by the interim government which is contrary to the amendments approved by the majority of the people, have no choice but to rule it invalid.
This situation creates an astonishing paradox which is that the struggle of the Egyptian national polity has, over the past decade, kept getting closer to lifting of the tutelage of power on the people and establishing a democratic system that gives back its place and dignity to civil society.
What is surprising is that those at the forefront of the campaign against the popular will as expressed by the referendum result is a group of liberals, leftists and Nasserites who were known as defenders of democracy during the rule of Mubarak. This group want not only to impose their will on the popular result and treat it with contempt but also resort to ridiculing the majority and challenging the impartiality of the amendments committee, citing the inclusion of the Muslim Brotherhood. This implies that the other members of the committee, including legal experts, had no input and influence and were controlled by the Brotherhood.
It is no secret that the Egyptian revolution was carried by huge crowds and that no power or party can claim sole responsibility for its success. This is unique in modern Arab history apart from, perhaps, Sudan in 1964 when the masses represented by political parties, trades unions and students forced General Ibrahim Abboud to resign from the presidency, and hand over power to the people’s representatives, in an uprising that lasted 20 days.
The Egyptian revolution had no head or clearly-defined objective beyond the removal of Mubarak. Because no one group can claim to have created the revolution, nobody can claim to own it. The controversy and bickering being witnessed are attempts to fill a vacuum.
The relationship between the Constitution and society is ambiguous to some people; they see the Constitution as mere chapters arranged by specialists to reflect the identity of the state and its statute. This is inaccurate, because the Constitution is a mirror of the social and political reality. This is not new, but reflects what we have learned from the professors of constitutional law.
In his book “Egypt between rebellion and disintegration” in 2006, Tariq Albeshri Alfaqih addressed a campaign which called for amendments to the 1971 Constitution: “The Constitution regulates what exists, but it does not create something that does not exist and it does not by itself end a phenomenon that needs to be terminated.” He cited the example of the Constitution of 1923 which provided some room for changes in power; the community had a diversity of political and social forces crystallised in organisations and institutional configurations and none of these could cancel out the others in reality.
In other words, diversity was not only based on what was made possible by the Constitution, but it also depended on effective existence and reality. Alfaqih concluded that the problem of Egypt (during the Mubarak era) was that we can hardly find any political or social will ready to move matters effectively. The apparatus for change was under the control of one person, creating the worst possible climate for constitutional change.
The Egyptian experience is the best witness to the validity of this statement. The faults of the 1971 Constitution and the tragedy of the amendments made to it gave the President of Egypt powers beyond what is granted to the Wali al-Faqih in the Iranian Constitution; the term of office of each is open, but the President in Egypt was given the right to dissolve the elected parliament, while the Wali al-Faqih was not. And we mustn’t forget Article 76, which paved the way for the inheritance of power by limiting presidential candidates to those nominated by the National Democratic Party.
The largest of the current problems in Egypt is that the former regime turned political parties into comic entities which did nothing. As a result, post-revolution the country faced a huge political vacuum and the entire political spectrum is trying to fill it. New parties are being formed but we are not allowed to get to know the true weight of each one. Politics has been changed from actions on the ground to the topics of evening chat shows; it’s very superficial.
Is this the reality we want to be expressed in the Constitution? Isn’t it better for the Constitution to reflect real politics rather than television chatter wherein right and wrong are being mangled?
A prominent intellectual, who believes that the Constitution should be prepared first, has justified his stance by saying that in any game, the rules should be known in advance. The Constitution provides the rules of the political game so having that in place first is both necessary and logical.
In response I’d say that although that is logical, it does not apply to the Egyptian scenario, because the vacuum in the political arena and extreme unrest are pushing us to remove the stagnation in political life, energise politics and then put the Constitution in place.
Although the rules of the game have not been in place, the people have played and gained experience which has enabled them to develop the rules. This is what happened with languages: rules were not in place but people started to speak and then drew up the rules of grammar later.
The current situation in Egypt is the beginnings of democracy. Hence, opening the doors for the emergence of political parties and parliamentary elections could help the country revive political processes. For the first time in more than half a century we face the possibility of electing an entity decided by the people in transparency and freedom. There is some dynamic mobility in the political arena providing a favourable climate for the election of a successful Constitutional Commission.
If we are honest in diagnosing the problem, we will say that members of the political class wanting to issue the Constitution first have a “complex” as a result of the popular vote; they have been shocked by the results of the referendum on amendments to the Constitution. They do not want to put themselves to the test of elections for fear of another shock result. Nor do they want the upcoming People’s Council to nominate a committee to develop the new constitution; they want to lock the future into a Constitution that is under their control.
As such, it means that the people have, in the eyes of such politicians, became the problem to which they cannot find any solution except subjugation. It also means that this group want to get Egypt out of the Mubarak era into one still controlled by a ruling elite not answerable to the will of the people. If they succeed, it will be a grievous injustice.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.